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tv   Politics and Public Policy Today  CSPAN  January 21, 2016 3:00pm-5:01pm EST

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through, you push that person out on front of the television cameras so that his constituents see he did a good thing and he'll come back and try to help in the future. great. and i learned from him so many things. i mean, so many things. credit? don't try to get all the credit, please. i mean, he's not adverse to getting credit. no politician could be, but credit don't worry about it. it's a weapon. use it to get your end. now, if the thing succeeds there will be plenty of credit to go around. if it doesn't succeed, who wants the credit? you see? and i loved working there. i loved working for arthur goldberg and ted kennedy. that was another thing that kennedy had and goldberg, too to a degree but kennedy really had it, you know, we're out there to help. help who? help him. help yourselves. and help people who need help.
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and do it with a little bit of lightness of tone. don't take yourself too seriously. when i would come in in the morning i just loved to go in there because it's going to be interesting and fun and we may get something accomplished. >> ma'am? >> sharon dove at voice seven moderate. i know that you've got a lot of cases that you could hear. now we won't talk about one that could be fast tracked but when you have to decide what cases, do you sit around and say, we've got to do a gay rights case or a civil rights case? will you make those decisions not some that are super speedzy that have to be expedited but can you give insight to regular people? >> can i add to that question? how does that relate to -- given that your docket is discretionary, you could choose to have more or fewer cases that situate the court in the world or define these parameters.
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to the what extent is that a legitimate consideration that, you know hey, we want through the aggregate docket to do more work in this situating the court in the world area or we want to stick our head in the sand and do as little as possible? i mean is there a connection between -- >> no. >> okay. >> the answer -- you'll see, the answer to your question is very good question. i get asked that a lot. i'll come back to that. but the two questions i get the most, first yours, because people generally who aren't connected with the court and so forth what they think is we sit around and we say, oh, what fun it would be to decide. or, you know, they have a perverted sense of what's fun. but i think that's what we're doing. and the other isn't it all really politics, aren't you a politician, junior varsity? as to the first question which you've asked, taft who was
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president of the united states and then chief justice of the supreme court gave the best answer. he said we are not here to correct errors. everyone who has his case here, and there are probably 8,000 a year that ask us to hear their case. everyone has already had a trial, an appeal and maybe two or three appeals. there's no need for a fourth appeal. and why would you get it right with the -- you know there are just too many. they are good judges, they'll get it right. well, then, why are we here? he said the reason you're here first and foremost is to create a uniform federal law. unlike other federal courts, we don't take state laws. most laws in this country are made in states, 95%. family, business, crime, almost everything. we're about made in congress. congress may get you to think that it's the most important, sometimes it is, sometimes it
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isn't. but anyway, we're only dealing with them. and suppose the lower court judges have come to different conclusions as to the meaning or application of the same words whether it's in the federal tax statute or whether it's in the constitution. different interpretations, do they need us? yes. the law isn't uniform. now suppose they've come to all the same conclusion. do they need us? why? they're good judges. no need. so the primary criteria is just what i've told you. and that's why i can go through 150 a week. you see, reading the memos the law clerks have written and i can see what's the issue in this case. is there a division on it? not are they right or wrong. now that's not 100% of the story because if a lower court judge holds a statute of
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congress unconstitutional we'll probably take it. and if it's some major thing that the country needs a uniform answer to quickly, we'll probably take it. but what i just told you at the beginning is about 95%. and those criteria are pretty much followed. it isn't sitting there -- i don't sit there and say this would be a good one for that. so you got the idea. it's much more mechanical after people think. after i go through my list my memos 150 of them whatever they are and everybody else does the same on friday we're in our conference by ourselves, anyone of us can put anyone on for discussion and maybe there will be 10 or 12 and we'll go around the table and we'll say briefly it starts with the chief and justice scalia and kennedy and thomas and ginsburg and me and alito and soto mayerciety soto meyer and kagan and people will add their two
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cents worth and a vote is taken. if no one listed it denied. and if i hear something i didn't hear before i can always say hold it next week. and if i want it held next week, i go back and look it up and write a memo. and if i really feel strongly i write a dissent from the denial of cert and i circulate it and you only see -- if you only see the ones that have failed. because i'm trying to convince my colleagues and sometimes they do. and so i think that system works pretty well. by the way, if we make a mistake and we deny a case we should have taken, what will happen? question? what? it will come up again. you see? it will come up again. and if it doesn't come up again, i guess the country didn't need us. you see? does that give you a rough outline and that is pretty much
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how it works? [ inaudible ] well, i don't see it that way because i have enough to worry about. does ben's factors sometimes enter into my mind? well it's conceivable in some marginal way where it's a close case. that's why i talk in terms of probably and never say never, et cetera. >> can i just ask one quick, quick question because it's bugging me. and that is just there's such an anxiety throughout this book justice breyer, about the knowledge gap and you talked about getting stacks and stacks of amicus brief from foreign countries. that's where you get your knowledge from right? >> yes, yes. >> and do all of your colleagues have that same sense that's where we're going to learn this stuff, it's going to come from the briefs or is there a growing sense that we better google this because there's a lot of knowledge -- >> sometimes you can google things. it depends on what they are. there are a lot of public things
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you can google. i wouldn't try to google some special argument that somebody doesn't have but i want to know something that's a general fact, i might. one of the best things in a patent case one of the lawyers got the idea of doing a diagram of invention that moved and he put it on -- and he did it with the approval of the other lawyer, but they put it onto google and we called it up and i looked at it, oh! so there are a lot of ways now you get information in front of the judge and the best thing in the -- typically, it's long been true, in the area of security is that the lawyers have a trial or a hearing before the judge and they have two great questions they always ask. there's an infrngment on traditional civil liberties, the lawyer will ask why. why? why are you doing it? what's the need? and now a big area there is going to be suppose the government says we can't tell you. well, can you tell the judge?
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well, you have to tell us. well, how do we resolve that? there's a big area you can see. but the question why is a very important question. and the second question they'll ask is why not? in other words, if you had to do it why couldn't you do it this less restrictive way. and the reason i -- well, anyway. and, again, you run into the same information problems and will that be sufficient or will we need more or -- and in a lot of areas traditionally when the government would file a brief saying this is the impact on foreign affairs that's the end of it. harder to say today. whether that should be the end of it. just listen to it, give it weight. to what extent. where. when. why, et cetera. it's filled -- i think it's filled with difficulty. and i think that's what i want to communicate. >> yes. >> hi jordan engle,
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natural-born citizen. i was trying to think of what areas of law that we could learn the least of from internationally where were the most distinct. can you address either whatever answer comes to your answer on that or the second amendment which was one of my guesses. >> you know, my first reaction of course, probably because of the cases we heard this week the law as it is related to american indians. i'm not sure we have learned too much from other countries. and it's very complicated area of law. maybe we qm as i say that i'm not certain. on the questions of sovereignty of the reservations and so forth, but we've had questions in that area about indian reservations. tough one. and if you say, well how did we
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learn -- abraham lincoln -- we've always learned things from other countries. where did abraham lincoln learn his law? in the cabin, right? in front of the fireplace right? what was he reading? >> black stonestone. >> blackstone, well done. who did blackstone quote all the time? it gets harder. not cicero. it gets harder. who did he quote all the time? what? lord cook. lord cook who made the commercial law of england and my professor, ben kaplan said that the reason anglo-american judges enjoy a degree of prestige in their countries is really because lord cook figured out how to create a set of commercial rules that made england the richest country in the world for many years. and where did lord cook get his information? at least some of it. the edicts of colbert from
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france. and i even began to try to find at one point -- i found somebody who knew that colbert took a certain amount of his material from the arab scholars in grenada. i thought that would be pretty good if i could pin that one down. but in any case. >> please. >> hi. my name is anna naturalized citizen. i was wondering you talked about looking at decisions of other courts and common law is a tradition that's delineated in this country by a constitution, so does the practice of looking at decisions of other courts kind of erode the principle of a naturalized tradition of common law and do you see that eroding in the future and giving way to a different type of law? >> well that's i think what some people are worried about and i don't think it has to erode. after all, we've had a system for many, many years where people have looked at the laws of many different states when
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they work out commercial law. and even without the united states supreme court, in areas of state commercial law, they look to each other's laws. and they were able to create a uniform commercial code. partly with the aid of the uniform -- the uniform code commissioners. there are many ways of trying to create a uniform law where that's necessary. and part of it involves looking to each other, and we wouldn't say that the uniform commercial code is some unfortunate development. i think we'd say it's a very fortunate development and to what extent did it change the law of utah? i don't really know. but, i mean, many ways of looking to these things. and i'm not suggesting one entirely. and what i want to show and i stop there is that i don't think engaging in this activity is going to undermine basic american values.
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i think by and large it will help preserve them. and most of all, it will be the perhaps one practical way to increase the likelihood that the great problems are improved in their solution through a rule of law itself, which is the fifth amendment, the 14th amendment, that, then, which there is more basic part of american law. >> but you go one step further in the book. sometimes subtextually and sometimes quite explicitly, which is that you argue that given a statutory regime that could reasonably be interpreted in way "x" or way "y," there is something desirable about choosing a statutory interpretation that makes the national system not work worse or work better, that tends to harmonize american law with other countries' law and tends
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to respect other countries' sovereignty over matters that, you know, and my i guess that sounds all correct to me. and yet i can imagine the argument in response that says wait a minute when did it become a canon of statutory interpretation to make other countries' laws work better. and i'm just -- i'm interested in how you respond to the idea that it really isn't the job of the american legal system to improve the global functioning of law elsewhere. >> well the examples i give -- >> which are really startling examples, by the way. >> i didn't want to give examples that proved the contrary. that is quite true because i
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think maybe i have given one that does. but you can't just pick your friends. but the anti-trust -- >> right. >> -- securities, copyright -- >> and ats. >> that's the one that's more controversial. the -- you say when did it happen that we instead of just trying, as in timberlane interestingly enough an old anti-trust case that used to be -- if there are any anti-trust lawyers here it's a small group. administrative lawyers. i used to belong to that group, we used to say we're a small group but we love it. the fact is we have a very strong anti-trust policy. we certainly always had when i was teaching it before and worked in the department. very important part of american law. and to allow this anti-trust principle of, say preventing
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agreements and restraint of trade to develop further in a world of commerce that is international i don't argue it, i assume it. it's very much in our interests. and similarly, anti-fraud laws in the securities area that take into account the fact that australia has a slightly different system aimed at the same thing to prevent its shareholders to get those to work in common is to me a way of strengthening our own law in an international world and works better. so, i think your question when did this all change, ah i don't know. but not too long ago. because you can find cases where the only meaning attached to the word "comedy" is the meaning of don't step on somebody else's toes where it doesn't have the idea of harmonization and it's
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used far and few between. look what's happened. look what's happened. and i'm saying probably that will work out for the better for us because we work in cooperation in trying to get these policies accomplished through many different enforcement agencies. that's good. that's fine. that's part of what law itself is about. if you see law itself as i do as simply one human mechanism designed to help people who live together in societies function more effectively, productively and fairly. that's hart and saks and i never went further. but that's what it's about. >> talk about ats now. >> ats is more controversial. ats is -- the alien tort statue. >> for those who don't know. >> dolly aritiga shows up in the
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united states who in paraguay tortured her brother to death. and she also finds a statute that had hardly been used for 180 years. the alien tort statute that says that an alien can sue in a federal district court for damages in tort for a violation of the law of nations. what's that about? probably that was in part about pirates. i mean, you found a pirate you hanged him. didn't matter where he came from. and if when you're hanging him upside down coins fall out, give them to his victims. and so how do we apply this statute now? who are today's pirates? and the court said she can bring her suit for torture and she went back even though she didn't collect the money because he was broke, but she still went back and she said to paraguay i came to the united states trying to look that torturer in the eye and i came away with so much
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more. well, other people began to follow that statute, and there were a lot of them. and now the courts begin to have to answer these questions. who are today's pirates? and what happens if the country involved doesn't want you to get their pirates? for example, south africa. who said we don't want judges in new york to start giving damages against companies doing business here. we have our own method of dealing with apartheid, it's called truth in reconciliation so stay out of it. and to what extent does the judge give weight to that? and how do we have a rule of decision that will, in fact be a rule that could be used in other countries even if they don't, but maybe the international criminal court's looking for rules. and you don't want a rule that everybody trying it differently
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is going to get all mixed up, and it will happen as we always think that everybody in other countries is going to go put henry kissinger in jail or something. that's not the way it's posesupposed to work out and there's no supreme court of the world in order to interpret this so judges in our court or other american courts in applying this are going to have to think about how to universalize the interpretation or principle that they're using. now, here some people think we just shouldn't get into that business. forget it good-bye dolly artiga. that isn't what the court said, maybe it came close. and there are other people who think you can work out ways of doing this, and there's where there is a disagreement. >> here in the front. no no, no sorry. not that far front. i meant the front of the people with their hands raised. >> justice breyer is there anything that came out of the obama -- i'm a health care
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consultant. is there anything that came out of the obamacare federal case that would prevent the federal government from taking more responsibilities particularly relative to directing patients to where they should get procedures done? >> the truthful answer is i can't -- >> it's a little beyond the scope of today's discussion. right in back. >> from the cato institute. justice breyer, i'm wondering what you think the advent of populism of both the left and the right both america and abroad has on the story you're talking about with globalization and the law? is it that it's irrelevant because this is a discussion within and between elites at least until president trump or sanders start appointing judges or is there some infiltration in that regard? >> it's a discussion about judges and law. and so what is the relevance to this discussion about judges and law? well i thought the best comment
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for at least last few years until i get shown it was wrong paul froin years ago in talking -- great expert on the supreme court and really talking about the new deal supreme court and the changes that they made. he said the court does not shift with the wind. it does not shade with the weather. but the climate, the long-run climate, hmm, that may have an impact. i think that's pretty good. because over the long run different judges are named. that doesn't mean the judges are all deciding things on the basis of politics,@
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with him on everything that president is in for a big disappointment. teddy roosevelt -- teddy roosevelt appointed oliver wendell holmes. within six months holmes had decided a dissent in the northern securities case an important political case at that time and a roosevelt said i could carve a judge with more backbone out of a banana. but if you're talking about very general things such as what law's about or what the constitution is about or how these principles in the constitution relate to life in america, what the country is about and how these old perhaps long endurable principles apply to the world that's changing. a president may be luckier in getting somebody who has
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agreement with him on many of those basic jures res jurisprudence points. since i've been in federal court in massachusetts i had a lot of disagreements. san francisco isn't free of disagreements where i grew up. but i've never seen disagreements like this. my god. and i thought for a while, you know, everybody should agree with me. who is so right. but i soon thought that's not so. it's a big country. there are 320 million people just about and they think a lot of different things. and it's not so terrible that you have people of different basic philosophies, i'd say, which show up every so often. not all that often. 20% are 5-4 and about half of those it's the usual suspects. but still, it's not so terrible.
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in a big country of people with lots of different views to have judges that have somewhat basic different basic juresisprudence approaches. there you are. it might have some effect over a long term. >> justice breyer, it's on i guess my name is charles sullivan and i'm with the organization keer. many years ago we were involved with the u.s. sentencing commission when you were judge wilkins started out and haven't talked to you since then really. i chair or direct an international prison reform organization, and i also read your book. and there were three i think plessey versus ferguson, the dred scott decision and the japanese decision that you talked about were the three worst decisions that supreme court has made over the years.
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and i know you're not open to other nominations but we're seeing in the prison reform movement the results of kansas versus hendricks, or hendricks versus versuskansas where we have a civil commitment for people that finished their krim that sentence. we have a situation in minnesota where no one in 20 years has ever been released out of the 700 there civilly committed. >> we need to bring this around to a question please. >> the question i have is i don't think there was any international background to that case. it seemed like it was unique, that really no one knew what to do because a person who was convicted of a sex offense said that he would be a danger if he was released. so we've got to come up with something. >> well, there are a lot of different areas. i mean, i'm sure that -- look
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in every decision it's split which is at least half of them, about half of them there's somebody who thinks it's totally wrong. i mean, not everybody can be right. and the -- you just have a system where you follow the majority. there are a lot of problems in the criminal justice system. i'm not going to disagree with you about that one. and i've written some things years ago about the sentencing guidelines which overall have made some improvements and i'm afraid perhaps fewer than i'd hoped. and that's a long story. i think we're in the process of maybe seeing changes being made. you would know better than i. >> are there other areas of the law -- >> i didn't think it had much to do with international, i agree with him. >> -- where we should be looking to -- you know, one of the questioners' comments is that, you know, court decided that case with no sense of what other countries do with long-term commitments. >> i'm not just -- i'm not arguing here.
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i'm trying to get examples here. and i think there would be fewer than 20%, maybe fewer than 15% of the cases in a given year where it seems pretty clear that you need -- >> need a sense of -- >> -- need a sense of what's going on elsewhere and there might be many other places where it would be helpful, i'm not saying it's not. the lawyers will point out where they are and sometimes they will be and sometimes they won't. >> we have time for one more question from the floor and then i'm going to scask to pose the last question. gentleman over way by the side whom i can't see. >> thank you, my name is joseph i'm a student across the street. to get the phrasing right. do you think that the federalism revolution of the rehnquist court era has now entered a phase where liberals should favor blue state federalism as the focus shifts from state sovereign immunity to other
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aspects of the commerce clause or enhancing state power to experiment with policy innovation serves to advance a progressive agenda in areas such as state labor environmental and health? >> i'm not sure what that -- >> the only comment i can make is just my only personal reading, i love this years ago because i like irony to a certain degree, and this is irony in respect to liberals liking one constitutional kind of approach and conservatives the other. i happen to read in about the same period of time a book by a man called eball which was very very interesting the history of the army mccarthy hearings. and he was a young lawyer attached to fred seton who before he became eisenhower's secretary of the interior was secretary of the army and they moved all the people of the files who mccarthy was trying to investigate over to the white house. why? so that mccarthy couldn't
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subpoena them. and at that time all the liberals thought presidential privilege is the best thing we've ever heard of! and i happen to be reading it at a time where nixon was not going to give things to the committees over the senate on the same kind of grounds. the presidential privilege. and surprise surprise, the liberals seemed to think presidential privilege was the worst thing they've ever heard of in their life. so it's always hard to line up exactly with a political philosophy how the legal principle is going to sort out and whether there will be for more of it or less of it and you're suggesting changes that may mean some shift in some political directions and i'm not going to say anything about it. because i really don't know. >> finish us up. >> i want to circle back what i think was undergirding ben's question to you when he was talking about going to israel and have it be a give. that what america does is
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relevant to other courts. because i -- that flies a little bit in the fales of what we hear is we have this sort of waning influence in the world that, you know, other courts cite us less often than they used and that they're more interested in south africa and the canadian constitution. so i know it's a part of your thesis that we want to be in this conversation. but is part of what animated the book the feeling that we're sliding out of an international conversation or is that overstating it? in other words, are you -- >> no, it's not part of the book. >> okay. >> israel is special because barack thinks you should support all kind of things that are relevant and that's how they developed there. it isn't true necessarily in other countries. whether we're cited more or cited less by some other country is up to them. it's not up to us. that's not my job. my job is not to be popular. the one thing you learn in my job is don't try to be popular. i mean, that's not the point. the satisfaction you're going to get out of it maybe you will be
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the only one who has that satisfaction, you try to get the thing decided correctly as best you can. and i think that knowing more in these areas, in certain areas, about what goes on, will help me decide this case better as a matter of american law. and whether that has other things attached to it and people cite us more or cite us less, that's up to them. that's fine. >> outstanding. >> i know it would make me popular to keep this going, but i'm not going to try to be popular, i'm going to fulfill my obligation to end this on time. please join me in thanking both of our guests justice breyer and dolly lipowitz.
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presidential candidates are spreading out through iowa and new hampshire today and bernie sanders will be holding a town hall meeting in wolfeboro new hampshire, this evening which you'll be able to live k78 eastern on c-span and c-span will have live coverage as hillary clinton talks with iowa supporters at the university of iowa in iowa city. that's set to begin at 8:30 p.m. eastern. and then saturday c-span will be live with the first in the nation presidential town hall hosted by the new hampshire republican party in nashua. many of the republican presidential candidates will be there along with notable republican leaders and over 1,000 grassroots activists.
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live coverage begins on saturday morning at 10:00 eastern, again that's on c-span. the person who lives here has to solve problems as big as the world and as small as your kitchen table. that's the job every day. and now the first lady who helped get health care for 8 million kids. the senator who helped a city rise again. the secretary of state who stood up for america and stared down hostile leaders around the world is the one candidate for president who has everything it takes to do every part of the job. she'll never let anyone privatize social security and medicare or shut down planned parenthood. she'll take on the gun lobby. finally get equal pay for women. and stop the republicans from ripping all our progress away. so on february 1st stand up for hillary, because if you want a president who knows how to keep america safe and build a stronger economy hillary's the choice.
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>> i'm listening to you. i'm fighting for you. and with your support, i'm going to deliver. i'm hoikillary clinton and approved this message. >> as president i will defend this nation. but i will do it responsibly. i voted against the war in iraq and that was the right vote. we must never forget the lessons of that experience. isis must be destroyed but we should not do it alone. we need an international coalition with muslim boots on the ground fighting with our support. it's time to end the quagmire of perpetual warfare in the middle east. as president, i will. i'm bernie sanders and i approved this message. >> my family's lived on this farm for three generations. the balkan pipeline would pump dirty crude oil across iowa. >> the fact that bernie sanders stands up against the pipeline is one of the reasons we support him. >> bernie sanders didn't hesitate to say no to the big oil companies. >> bernie knows if we don't act
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we threaten the climate and the health of our children. >> bernie sanders understands that. >> bernie sanders has the guts to stand up for what he believes in. >> i'm bernie sanders and i approved this message. >> c-span's campaign 2016 taking you on the road to the white house. this weekend saturday morning at 10:00 eastern, live coverage from nashua, new hampshire, for the first in the nation presidential town hall with eight gop candidates kentucky senator rand paul, former virginia governor jim gilmore, former florida governor jeb bush, ohio governor john kasich, new jersey governor chris christie carly fiorina, former pennsylvania senator rick santorum and florida senator marco rubio. and saturday at 8:00 p.m. eastern live coverage of a campaign rally in waterloo, iowa, with texas senator ted cruz and tv and radio host glenn beck. and sunday afternoon at 1:00, live coverage from iowa at a rally for gop candidate donald
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trump. for the complete weekend c-span schedule, go to our website, american history tv airs every weekend on c-span3. all day saturday and sunday. some of the highlights for this weekend include -- saturday at 2:00 p.m. eastern on oral histories an interview with conservative commentator armstrong williams. part of the explorations in black leadership project. >> and we walked in, some of the people recognized my father because he had a strong reputation in the county, and just before he was about to be introduced to strom thurman i extended my hand i said, hello, senator i'm armstrong williams and i hear you're a racist. >> what did he say? >> the senator said to me you sound like a bright young man. what grade are you? when you graduate from high school if you ever want to come to washington and intern for me come to washington and decide if i'm a racist or not. >> and a little after 9:00
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reenacters react the boston tea party at the old south meeting house in boston. sunday morning at 10:00 the 1980 republican campaign with interviews of ronald reagan george h.w. bush, john anderson and howard baker recorded by students at salem high school in new hampshire airing for the first time on national television. and at 4:00 on "real america" 35 years ago this week iran released 52 american hostages after holding them for 444 days. there are archival photos and videos, we'll look back at the iranian hostage crisis including president carter's announcement of a failed rescue attempt and the release of the hostages just minutes after ronald reagan was sworn in as president. for the complete american history tv weekend schedule, go to the congressional intenet
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caucus held a caucus about freedom online and business reviews and efforts to preclude this is about an hour. >> welcome, everybody. welcome. hi. well, happy new year. my name is tim lorden, i'm the executive director of the internet education foundation which has a few projects one of which is the congressional internet caucus advisory committee, so this is the beginning of our 2016 season. the first briefing of the year. we'll do about 15 or 16 of these every couple or weeks or so on
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different topics and this happens to be on consumer reviews. we host this in conjunction with the congress, the co-chairs are congressman bob goodlatte and anna eshoo and then we have co-chairs in the senate. this year the congressional internet caucus will be celebrating its 20th anniversary, founded in 1996, so if you work on internet issues try to imagine where the internet was and where you were in 1996 and you can just see how ancient this particular organization is. so, thanks for coming. you also having a little bit of a housekeeping. you also have a flyer for the state of the net conference which we also produce and that's basically like the entire year's program on internet issues in one day which is a short walk from here at the museum. that's on -- a week from -- a week from monday. so, on january 25th so welcome to that. and then to start this thing off, this is called gagged by
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the fine print protecting consumer rights to share reviews online and i'll hand it off to the moderator in a second. but if you are on twitter you can follow us and the hash tag is #consumerreviews. is that sing cuellarular or plural? and to lead us off is amanda bergen and she was the summer fellow and i'll just leave it off to miranda. >> thanks, tim. and thanks to our panelists for being here. i'll introduce everyone pretty quickly and then we'll get started. down at the end we have professor eric goldman who is from the high tech law institute at santa clara university school of law in california and brad young from trip adviser in boston and karl settlemeyer from the federal trade commission the division of advertising practices. very relevant. and george slover the senior
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policy counsel at consumers union this is an issue relevant to consumers. we've got a lot of angles to look at the issue from. but to start off you know we're talking about consumer rights specifically protections for consumers to voice their opinions online in a number of ways. as you see more review sites popping up there are more opportunities for consumers and anyone to share their opinions both with the businesses that they're dealing with, give them feedback, but also with their fellow consumers sharing their experience to advise people on where to choose for their next vacation vacation, what products to buy. this should theoretically drive competition because businesses will need to compete on the quality of their products and services and that's happening, of course, we've seen it a lot. but we also see businesses trying to push back. we see businesses trying to sometimes silence critical reviews that might hurt their business and obviously -- they're doing this in a number
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of ways, three do it through intimidation in various capacities. last summer we did a review on strategic lawsuits against public participation, saying this is defamation but right now today we're talking about clauses buried in the fine print of user agreements and contracts that actually say you can't post negative reviews of my business online or you'll be fined or held accountable in some other way. so, to kick off the discussion, i want to start with a hypothetical and we can talk about it from there. imagine a family has been saving up all year to go on vacation and they get to their hotel and they are so excited and they find the room is dirty the service is bad and the shower doesn't work and after their vacation one of the family members leaves a review online saying this was the situation. maybe check out a different place if you're thinking of going on vacation. and they get notified soon after that they -- the hotel contacts
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them say, you've actually vied the agreement that you signed with us when you checked into the hotel and if you don't take that review down, we'll fine you. it was in the contract. so -- and they already have your credit card on file so they could do that. so, you know brad at trip adviser, you probably see this quite a bit. what's the situation here? how frequent is this happening? how frequently is this happening, you know? how do you help consumers navigate these clauses? >> sure. so to really level-set that question we don't have great visibility into exactly how prominent this issue really is, right? these clauses by definition are intended to chill speech and to stifle speech, and so the best ones we never hear about because they're doing exactly what they intended to do. no one's talking about them and they're not getting fined. the business is happy because they're not getting negative reviews and the consumer well, probably not happy that they
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don't get to write their review isn't getting fined which may be the best of two bad situations. what we do know is last year in 2015 trip adviser received a couple thousand requests from our members to remove reviews in connection with statements from these users saying i want it removed because i'm being harassed by the business owner that i've reviewed. and in some of those situations the members went even further and provided us with statements either saying, you know, there's a clause in the contract that says i'm not allowed to write this or i'm going to be fined if i write this. i have assigned a copyright in this or sometimes they'll give us a copy of that language, so we do see it and we definitely know that it is a real-world problem that's taking place. that said, so that's a big number, right? but that's really we believe the tip of the iceberg. the person -- the reviewer who
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is going to take the step to, a write a review which is not everybody. a lot more people are going to trip adviser and reading instead of writing. if they write a review and if they get contacted by these people and go out of their way and saying i want to take it down and here's what the clause looks like. it's the very small minority. we're seeing the 5% above water, we're not seeing the 95% of all this nefarious action that's under water. that's a really big problem for consumers and businesses across the country. and that's just in the hospitality sector. trip adviser has listings for hotels and restaurants and attractions. we don't know anything about the mechanics and the doctors and the dentists and the home repair professionals and the big box store retailers and the various internet sites. they're doing exactly this too, but because they don't have a listing on trip adviser we'll never hear it. it's a real issue and it's not
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going away on its own. >> professor goldman you've been writing about this for a while. you've been following legislation around it. can you tell us what's happening legally here? what do these clauses look like? whylegally. what happens when they are taken to court. what's happening here? >> so again, the premise is how can a business stop consumers from talking about them online and they can use a variety of different techniques. we already identified a few of them. one is you can just say in the contract you may talk about us on line or say anything negative about us online. second way set it up as a penalty. you can say if you say anything about us online or say anything negative about us on line we'll fine you. we'll hold back your security deposit if you put in a deposit. and what we've seen also is an extension of that is if people don't pay the fine then the
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threat is filing a negative report on their credit report. so then the business will say i'm going to ding your credit because you didn't pay the fine about not talking to us online. and using intellectual property to take control of the review. the most common approaches is to say the consumer assigns the write of the review to the business. so the business becomes the owner of that review and then as owner they can decide whether they want it to be published further. there's others we've seen and others that will be invented and we haven't seen a lot of court challenges over these clauses. so in my estimate, millions of americans have signed some type of provision like this. we've seen various number of
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challenges in court and even final resolutions in court. when we have had these type of clauses presented in court generally judges get the point and say you can't do that and i'll try to find a way to work around the contract issue or the consumer law issue or the ownership property to make sure you can't do what you're trying to do business. but as brad explained that's the iceberg problem. that's only that very top of the iceberg that's ending up in court and lots of things are happening before we ever get to court. i do want to call your attention to one particular case i find interesting, it was a case involving a vacation rental where the landlord said to the renters, you may not review us online. an we don't know how many people didn't review them online how many people were chilled by that but we know two people did write reviews negatively about this hotel review and were sued and in court the case that stand out
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in my mind is when the court said that review was not defamatory defamatory, so landlord you don't have right to sue for defamation but you might be able to sue breach of contract. this is the reason why i think we need to pay close attention to the law because could it be in front of a judge look like breach of contract but we know better. >> thanks. so we have the business perspective, the legal perspective. what do consumers think about this? what your hearing from the people who are victims of this? you know we all go on websites and click i agree to these terms, i don't think any of us really read those unless you're in law school or a lawyer and get a kick out of that. do people even know this is hopping. >> when i heard about the problem of what are called
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nondisparagement clauses or gag clauses my first thought was hey that's our people, the folks we care about, which is everyone in this room and it's everyone who has ever bought something and everyone who has ever had something bought for them. are all affected by this problem. one of the most important ways consumers get power in the marketplace is word-of-mouth. that's key that the competitive marketplace works tint of consumers. the internet obviously enhances that consumer voice. and nondisparagement clauses are a direct frontal assault on that consumer voice. the problem is bigger than just silencing negative reviews on the internet although that's kind of the reason we're all here today. these none disparage september clauses when they are signed cover all communications, all the way from putting an ad in the newspaper to potentially talking with neighbors and
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co-workers about an experience you've had. so my second thought was hey, that's us. i work for the policy and advocacy arm of "consumer reports." for 80 years we've been in the business of testing products and services and publishing objective independent expert ratings in our magazine. and now in our online publications. we buy the products and services that we test for quality safety and durability in the regular marketplace. anonymously as ordinary consumers. that's a key part of making sure we're not getting special treatment, that we're getting the product or service the same way consumers are. so that we can tell consumers what they can expect to experience if they buy it. so if a purchase contract contains a nondisparagement clause the business could threaten to silence us to stop us from giving the straight
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objective story to consumers. the further irony is that many are even or most consumers who sign consumer sales agreements don't even know the clause is in there and yet by signing or by clicking and i agree button they supposedly agree to be bound by it and in contract law says they are bound. even for consumers who do know it's there they typically had no choice if they want the product or service. and the sales person typically has no awareness or appreciation for what's at stake here. it's become just a routine part of the sale. so we're very glad the senate took up this problem and passed legislation to fix it. to safeguard the consumer voice. with overwhelming bipartisan support. by voice vote in committee and by unanimous consents on the floor and we hope the house will now follow in the weeks to come.
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>> could i add something just on the contract piece. unquestionably in many cases the restrictions on consumer reviews will be buried in something that consumers aren't like try to see but i don't think that's a helpful way of thinking about the problem. i really think let's assume consumers understand exactly what they are being asked to do and given full and unambiguous obvious disclosure we still view it as a distortion on the marketplace and unacceptable for consumers to agree to. >> i'll jump in here. i'm an attorney with the federal trade commission. my opinions are my own not necessarily that of the commission and the mission doesn't take a position on this particular legislation. i can tell you what the commission has done in exercising it's authority under section 5. the commission has challenged recently in a case i've been involved with the practices of a company which has been selling
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dietary supplement for which it was making in the commission's view exaggerated and unsubstantiated weight loss claims and coupled that with a practice of offering to pay customers for positive reviews and had the fine print in its contract restricting them from making negative comments and they've actually were suing people for making negative comments, threatening people when they complained or if they filed a complaint with the better business bureau. the commission basically challenged that practice of using these threats and gag clauses as being unfair within the meaning of section 5 of the ftc act. that means the commission allege that the practice of using these provisions causes consumers substantial injury that they are not likely -- they cannot reasonably avoid and that there's no counter vailing benefits that outaway that injury. which is a long way of saying in a way this basically is a
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practice that distorts the marketplace it damages consumer welfare and the emphasis of the economies's case isn't so much the fact that the provision was buried in the fine print which sirkts but it is, but the fact that this practice will deprive the marketplace of truthful information, truthful negative information that will be to the detriment of other consumers who come after us. so we're not even necessarily focusing on the harm directly to the people who have clicked through and whose opinions are being suppressed. we're looking also more holistically at the impact this has on future purchasers who are deprived of negative information about that seller's products and who may end up paying more for a product than they would if they knew the truth about what the experience of the prior purchasers had been and they may be buying products that
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aren't good for them and just overall bad for the entire eco system to have reviews manipulated by having them basically being suppressed. >> so carl, when you come across these issues, and you find that the clauses are unfair under section 5 what does the enforcement look like >> well we've had very little occasion to actually have enforcement against these type of things. this company was notable in that it just wasn't going out of business when confronted with these things which a lot of companies had been they were actually suing people for breaching these clauses allegedly, and in addition to, you know, counts for defamation and so forth. what we did, we went into federal court in tampa back in october we got a preliminary injunction and the noteworthy thing about the judge's ruling in this case at this point, it's
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still in litigation, trial is not scheduled for another year but the judge didn't rule directly on our unfairness theory but the judge ruled that the company would not be permitted to enforce these type of contract, would not be permitted to use these during the pendency of the litigation and specifically what the court found is and i'll quote from the opinion in order to squelch public opinion, threatened civil action and financial loss for their comments and as a result in this context of this case what is minimally necessary against unsubstantiated claims while this case is pending about the weight loss attributes of the product is an injunction that constrains reco labs of
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threatening consumers about their products. we got a favorable ruling but it's also, you know, very limited in terms of the context of this case and also the unfairness analysis the commission uses under section 5 of the ftc commission is very fact specific. while we feel we have a very strong case here, we got an expert opinion of a professor from temple university we submitted with the injunction papers. we got a lot of commission precedent about use of bars on comparative advertising between competitors and there's a lot of support for this but whether or not this case would map on to other circumstances is an open question, in fact whether the judge will rule in our favor on our specific question. >> can i jump in on one thing. carl just laid out two very serious harms caused by these
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clauses. the censoring of the reviewer and stifling their freedom of speech and limiting other consumers. i would argue there's a third harm and that's to all of the competing businesses that are playing by the rules with that unscrupulous correct. a number of sites trip adviser being one, yelp a lot of these companies have algorithms that will give the consumers an ability to compare them. when all of a sudden you know you're playing the rules and doing everything right and the guy down the street inserting this now the small and medium businesses are getting hurt as well. there's a variety of victims of these clauses. >> eric, i want to jump back to you on the court decision in this case and any of the other court decisions. are they helping move the issue forward enough? are they looking at these issues
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too narrowly. what's going on in that sense? >> i like the way carl framed it. in order for the ftc to reach reco labs behavior it had to rely on its unfairness authority which is fine, although whenever i see unfairness from the ftc i start to wonder why they didn't rely on their main tool of deceptive authority, and then hit to go and persuade a judge that that was proper ground and still hasn't been able to resolve that. we could also imagine under contract theory things like unconsciousability might apply. the court might strike down the contract and say that's not a reasonable contract or the court might invalidate the contract on public policy grounds. so there are theories that can combat the tools in court but they are not hitting the nail on the head with the hammer on the head perfectly.
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they are trying to fit it into existing formats and that's why i favor a new federal law because we would remove any of these clouds that exist over these ways in which the tools, the clauses are being invalidated. we would give a perfect tool that would tell everybody stop it. >> that's a great segue because the senate passed the consumer review freedom act i think it was just a few weeks ago before senator thune. i have representative issa here. i wonder if you want to make a statement about the house version of the bill. >> you're hitting the nail on the head which is any time the executive branch relies on laws not intended to cover a new or different claim we run into the problem of we in the first branch are often complaining that, you know they are exceeding their authority, it's overreach. in this case it's a reach that
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needs to be addressed. the tools that we've given even the federal trade commission and so on are inaccurate for all cases, so even as you said, i think carl you said it even if they work in some cases it's a long adjudication, you have to find out if that square peg in that exact hole fits when in fact with the exception of a willing buyer, willing seller entering into a contract when they truly receive something for limiting their free speech, free speech should be presumptively an absolute right. and these contracts are invalid because they are not actually delivering a reasonable limitation on free speech and that's one of our goals is if you enter into a medical testing situation in which you agree that in return for entering this program you're not going to talk about it that is historically
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reasonable. if you enter into a confidentiality agreement in which a trade secret is told there's a reason. but in the case of simply companies who only want good news and want to find a way to gag bad news that's where we have to have a broad and sweeping law that simply says you don't thoof go a federal agency you have a right to do it and no contract shall be valid if it attempts to limit that. >> you want to speak to the content of the bill a little bit or we can turn to the panel? >> the panel, we want to know the problems and we want to constantly in both house to and senate say are we being broad enough, are we being that absolute because or challenge is we want to be broad enough not to have agencies having to enforce it and not having judges go through an entire trial. on their face these should be summary judgments that you don't have a right to limit speech
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particularly when almost every company and i'm a information businessman every company find as way, especially weight loss to have somebody talk about how great the product works. it is inherently deceptive if it doesn't work for somebody to limit that speech. and that's exactly -- and carl that's why it's one of those poster children we understand if you got somebody saying something works you absolutely should not be able to limit somebody saying i used it and it doesn't work. it is inherently wrong. the same as every restaurant that post -- i've gone to them multiple stars and all the right awards, let's be honest they post the award they don't post the criticism and that's what we're hoping to clearly change. but i think one thing i'm here and wanted to listen is we keep asking are we creating a law that creates litigation and administrative action or creating a law that limits the
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reason for the administration to weigh in and clearly limits cases from going through courts for protracted periods of time to under our legislation and i think senator thune and i both feel strongly the latter we have to achieve something clear and simple that reiterates the first amendment is the first amendment when it comes to saying you don't like something, recognizing you must state you don't like it can you not, in fact, falsely claim something and that balancing act is where we've been for 240 years. but please continue. i didn't intend to become part of this. >> i'll speak briefly to that. we've taken a careful look at both the house bill and the senate bill. we like them both. the primary difference is which enforcement agency is constructed as the repository for enforcement at the federal level. we think it creates thing right
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boundaries, not only giving a specific enforcement authority against the practice but also nullifying enforcement of these clauses from the get go. and leaving open the potential for malicious or false reviews that are damaging to a business's legitimate operations for being appropriately remedied in a court process like they have been historically. we're very pleased with the bill. >> some criticism of legislation like this is that it takes away tools of businesses to protect their reputation. i know in the strategic lawsuits against public participation issue there was some concern about access to justice. eric what do you think about this legislation? is it narrow enough? does it address the issue in the right way >> i'm a fan of the legislation
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and i would say that if you weren't here. legislation is particularly well constructed on trying to cover all the different tricks that we've seen businesses engaging, and so we've seen the contracts. we've seen the fines. we've seen the ip assignments and the leverage jays very helpfully covers all of those. the one place i flagged as a potential place that businesses could still get a little bit frisky is this boundary between protection of trade secrets and calling every interaction with a person and a business calling it confidential information. i think the law would do a terrific job of sending the right messages to court if you see a clause like this tell the business to stop it get out of our courtroom. the only other way could it be improved not twin bill but perfectly companion with the federal anti-slap law -- anti-slap laws would say if you
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bring a lawsuit because you're trying to suppress free speech the case should end early and should be a fee shift. the attorney fees should be paid by the defendant. and then saying if any business is foolish enough to go into court then we have a fast lane to tend case early and the business would have to pay the defendant's attorneys fees. >> if we're talking about consumer reviews on the internet, platforms are gate keepers for those reviews and giving us a tool like federal legislation that is not patch work state by state or court by ruling by court ruling just saying across the united states just take a look at this law. and informing both our reviewers and the businesses the status of the legal premises around the
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reviews right now would cut off litigation really early before the complaint even gets drafted the first bullying earn mail or harassing message and hard for a plaintiff's attorney under rule 11 to sign their name to a complaint when knowing this law was on the books. >> attorneys under rule 11 which technically are sanctioned on the attorney. >> so not necessarily. >> the other fee shift sag little broader more a plaintiff/defendant. >> i'm not saying sanctioning -- i'm not endorsing sanctions against the attorneys as much as saying both bills as drafted from our point of law would be putting the plaintiff's attorney on notice before they start drafting that complaint. once their client has been alerted from a platform like trip adviser orangey's list or whoever you can't bring a lawsuit based on these clause.
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the clause itself is not legal. i don't think there's any chance you'll find any ethical attorney who will sign a complaint. >> in many cases laws are created like this to challenge plaintiff's lawyers. i know what congress wanted. how can i get around it. the strength of the bill is to be tricky for teen most clever attorney to come up around the bill. >> it sounds like businesses are pretty creative in finding ways to either, you know, scare consumers into not posting reviews or putting clauses to get them to take it down p.m. i'm wondering from george are there other issues consumers are facing online when they are dealing with these contracts maybe carl, you know what are some of the other complaints you're seeing with businesses that are kind of in the same vein that people should be aware
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of that anti-disparagement clauses go hand-in-hand? >> i would say say first briefly we've taken a look at that bill too and we're sympathic to the issue there's, the similarities about how that can be abused. with we think there may be some scope problems in the way the bill is currently constructed. we think it needs a closer look. it's an issue that needs looking at. nondisparagement houses are one of the most recent anti-consumer additions to the standard form boilerplate consumer contracts that business legal teams draft up and are constantly tinkering with and revising and adding to to in our view stack the deck further and further against consumers by pulling the rug out
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from under their basic legal rights and protections under common law. another example of unfair fine print is a clause under which the consumer supposedly agrees not to ever take the business to court. no matter how harmful and widespread its misconduct might be. instead the consumer supposedly agrees to take any complaint to a private arbitrator typically often hand-picked by the business and already familiar to it. and who is not even required to follow the law. there are often other accompanying restrictions and requirements that make bringing the claim in arbitration so inconvenient and costly for the consumer that it can't be justified. so the business gets off the hook, even for potentially widespread and egregious conduct. again this problem goes beyond the internet but signing
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agreements digitally makes it worse in that it's harder as a practical matter to know what's in the sales agreement you're signing. i don't want what i said earlier and what i'm saying now to be misheard as saying that the main problem here is that it's a surprise to consumers because i agree with what everybody else here has said that it's a problem because it's unfairly pushing the consumer into a position where they are giving up fundamental legal rights and protections. but i do think the surprise is an additional harm and additional factor. the last time i got a new mobile phone as we were wrapping up the purchase the salesman handed me his digital machine and the electronic pen and showed me to click the box saying i agreed with terms of the sales agreement which the box said i had already read and fully under stood. when i asked him if i could see
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the agreement so i could read it he said he didn't have the agreement available in the store. so out of cureiosity i told him i needed to see it. he called headquarters legal department and it took more than a half hour. how many consumers are going to go through that? the agreement was 50 pages long. how many consumers will read that and be able to understand it? nondisparagement clauses and forced arbitration clauses are just two of the many one sided provisions being slipped into the fine print much standard form boilerplate take it or leave it consumer contracts that are taking away the consumers' voice and consumers' basic rights and protections. we're working on that bigger issue of unfair fine print and there are a lot of issues that
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need to be looked at and sides of it that need to be examined. while we keep working on that bigger issue i hope we're ready to start now by ending the use of nondisparagemen clauses by seeing this bill enacted in the coming weeks. i'm happy to answer anybody's questions about that bill, feel free to give me a call, we're here in town, and happy to talk to anybody. >> we'll leave some time for questions at the end in a few minutes. did anyone else want to comment on other consumer issues you're seeing on trip adviser that you're hearing from individuals who are engaging with these businesses or any particular cases i think to just hit home with the anti-disparagement clauses that kind of brought this issue to light? >> sure. so thinking about some of the cases on nondisparagement
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clauses that have taken place recently that i think were interesting or alarming, the first one professor goldman spoke about earlier in the southern district where the judge granted the motion to dismiss saying that the reviews were not defamatory but allowed the lawsuit to continue based on the potential breach of contract which is very alarming. allowing contractual language to trump honest reliable speech. another one that made a lot of headlines. they testified to senate commerce company in in connection with senator thune's bill. that was a situation where miss palmer purchased a $20 item from an internet retailer taken temple never showed up.
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didn't pay that $3,500 fine clear gear sent to it the credit agencies who reported it and the palmers credit dropped and she listed a whole host of actual impacts on their lives on loans they couldn't get and actual impacts they felt financially because of this one review. and they were fortunate enough to hook up with public citizen who took their case on on a pro bono basis. that's not something most kpoem
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have done. most people in that situation end up with ruined credit and she was able to adjudicate it in the courts through public citizen. i don't know whether -- year gear then folded up. i don't know if any assets were recovered, if they were made whole. the other case that's interesting was adjudicated more in the court of public opinion than actual courts. in two summers ago in the summer of 2014 it was noticed that a small b and b in upstate new york or hudson valley, new york had included in their contracts with brides and grooms a clause that said actually very sna rx y clause something along the lines we know brides and grooms love us but your guests may not get how awesome we are and control your guests and if any of your guests write negative
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reviews about their experience you owe us $500 for each review and it's coming out of the security deposit you already gave us. unbelievable. now we're not only trying to exercise prior restraint on an individual speech that you have a contractual relationship with but everybody that they know in their family as well. and the "new york post" picked that up and ran a story on it and within about 12 hours yelp and trip adviser were getting flooded with reviews and comments of this place. now those are not firsthand reviews so they didn't meet the guidelines for trip adviser or yelp and either didn't get published or came down but the population of consumers spoke quickly and very loudly saying that's violating social norms and that's violating what we expect out of business relationships. i think it's really instructive as to what the american consumers expect in their agreements and expect not to be
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in their agreements with the businesses that they work with. >> i'll just add one other dimension to the reco labs fine print that they were using up until we got the preliminary injunction is different verges of their agreement would have buried in just not their right to sue you for leaving a negative review but as said by the way the $480 you paid for this fiber product that we're claiming will give you dramatic weight loss the $480 price is actually a subsidized discounted price and that really the full price is $1500. and if you breach the contract including by leaving a negative review we can immediately charge you the balance of the full price and the commission alleged that that was deceptive, straight up without having to get into you know, the unfairness doctrine and basically reco labs put that fine print and put that in a
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notice you got along with some instructions you would receive with your product when it arrived saying if you breach the contract and leave a negative review you'll be charged this full price. in term of the iceberg problem, we probably have a difficult time counting who would see that piece of paper and decide game over right there even if the product you know, didn't work for them as we believe the science suggested it wouldn't. that's just another dimension that needs to just be on the table in terms of what we're looking at in terms of how clever lawyers can work around sometimes straight up prohibitions on thing. >> maybe last thoughts from anyone and then we'll take a few questions from the audience. do you have any sort of final thoughts? >> yeah. i just want to reinforce.
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this bill in some sense is a little bill. it's not trying to change huge segments of the economy or anything like that but it's a crucial piece of the overall market mechanism. we talked about that at the beginning. going back to george's concerns about consumer clauses one of the ways we can combat those is by letting the court of public opinion decide and so allowing consumers to express their experiences with a business, make sure that not only can we fight against bad products but we can also fight against abusive terms that are used with good products. so this bill really becomes a foundation for the entire eco system to make sure we can hold businesses accountable for their poor choices. and the category of truthful negative information is the most imperilled type of speech or content anywhere. it's so easy for that information to be suppressed or bullied or never proper in the first place and so to me this bill is really about trying to
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stake out a little bit more bound to make sure that we give more breathing room for this highly endanger type of content. >> i agree with everything you said. and i would say two final thoughts i would throw out there is, you know, it's easy to think, you know, that this is a little bill or consumer reviews are not that important of a type of speech. there have been -- this is a very studied sector right now of business. new in the last ten or 15 years, it's really emerging. study by the consumerist last year indicated 70% of americans now consult consumer reviews before making purchasing decisions. from our vertical in travel it's much higher. you're talking closer to 90% of people. it's real dollars people are trying to figure out how to spend efficiently and you don't
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want your family vacation ruined, right? so it is important. and the other thing i would say this bill is really important is excellent the anti-slap bill is as well and they are not -- while they have the same end objective of ensuring that the speech that professor goldman was referencing for people to read it and process as they want to they attack different methods that the bad actors take to stifle that speech and so this really is not a situation where if one passes the other should die. the two of them work together really well to protect consumers and the entire marketplace of information. >> i'm just going to put in a plug for if you are a consumer or if you know somebody who has sort of encountered any clause like this, any contract feel like you've encountered some sort of, you know, suppression
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of your ability to leave a review as well as any other myriad ways of which the ftc is looking to protect consumers from deception from unfair practices go to, fill out an online complaint. but having a database of people leaving their stories and telling us about problems they have with businesses is really critical. so for that as well as numerous consumer and business education tools that you can use to help empower yourself. >> i would say three things. first, when brad mentioned the consumerist, that's us. that's one of our publications. so we definitely -- >> you're welcome. >> we actively engage there. secondly, i would say, that looking at this not from the perspective of somebody who wants to write a review but somebody who wants to buy
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something that's been vetted and tested in the marketplace. if you don't want every single purchase you make to be a crap shoot, it's important that word-of-mouth be able to spread without restriction. and this bill will really help do that. then the third thing that i would say just about the slap suit bill i just repeat that i think that there is an important concept there that needs to be distilled. i'm not sure if in its current form it's ready yet. but that's something that we definitely want to work with others on. >> i would not go on a trip or buy a cup of coffee without consulting trip adviser or yelp or one of the other review sites. one of the things and eric i agree with you. this is a narrowly tailored approach this and wasn't slap
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bill and by expanding to kind of an take on click through next sauce little dangerous. but people on the other side would say there's no recourse for a business. so somebody gives me slanderous attack what do i do? i was hoping you could address a bit more on the defamation and common law recourses on the books today for businesses as well as expand some examples of where we as a society have actually found contract provisions void against public policy. >> let me start, focus on your first point which is, so what about businesses that are being injured by consumers who are out to get them? it could be that they are unhappy consumers. they are twoilg say whatever it takes. could it be they are jilted lovers or competitors going and trying to tweak business because they want to cause harm. i want to passaic sure we're clear that that is a totallily
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separate issue that the bill we've been discussing today. what we're discussing today would eliminate restrictions on consumers being able to share their views. it doesn't mean they can say anything they ever want. then we go back to our default set of laws that apply when people share their views and people thoof be accountable for their words if they exceed their legal rights to speak up. so we have laws like defamation on the books today and those laws are not perfect like any laws but when we have seen many examples where consumers have overstated the situation, sometimes maliciously and have been found to have engaged in defamatory reviews and have bern held accountable for that. if i am a business owner bringing a defamation lawsuit i'm not ecstatic about that but what contractual suppression of the reviews in the first place is against it. you can imagine businesses want to put in place you will not
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leave defamatory reviews. what does that contract laws do? it doesn't do what the law already restricts. that's the only possible thing that a prospective contract would have been possibly legitimate, but would have been prevented by this bill. so the defamation and other laws that exist around to help businesses when there's an attack online give a counter balance i can't stress enough we do see those cases but far more often what i see is the business going saying that was defamatory but really wasn't and using that threat as way of driving content off the internet. for every legitimate case of defamation we have hundreds ever cases where content is being driven off because it wasn't defamatory but threat was enough to drive it away. anti-slap is super helpful for that. anti-slap is also an iceberg
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problem. it only addresses the cases once they get to court. the way it goes in practice is a business sends a threatening e-mail or letter, says i'm going sue and i'm going take everything you own because you have defamed me. now at that point the person receiving that letter has one or two choices. bring it anti-slap laws will protect me if we have a federal one that's nice and robust, or they can say i'm not going jeopardize my house this is a single review. i'm not make being any money on this. i don't have enough of a stake in the game to bet my financial future. i don't want to spend years to be torn up by some lawyer in depositions and mound of paper. that content is just coming off. really we have the problem with anti-slap laws isn't that they are not a good solution they are a great solution, but they are an incomplete solution. the real meat, the real rubber meets the road when people get the letters and act on it
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without going court. anti-slap gives them more comfort to have back bone but most people won't take advantage of it. that's a separate problem we need address. >> a question in the back. >> i would like to ask you, i know this sounds sue perperfluous. 20 years ago we didn't have the internet or open forums where people can comment on anything. there's an option the public has if a rating there's a low rating for a comment whether it's defamatory or inaccurate or for whatever reason people can vote it down and it will be suppressed or won't necessarily be seen as visibly as the other comments but do you ever get into defamatory situations where you are defending or criticizing or going after someone who wrote something that could be considered harmful to the
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general public or onerous in some very negative way? >> so i think it's fair to say, you know, every internet or intermediary platform like trip adviser has their own approach. a number have vote down approaches, others have filters of what's visible and not visible. tripadviser works in a black and white approach. if reviews meet all of our guidelines we'll publicsh them. if not they don't get published. if they are published and later looked on again and don't meet one of the guidelines they get taken down. the default sort is crow chronological. when you're operating at scale like a lot of these companies
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are, you certainly can't read every review but with human eyes they come in and even less likely you can't fact check them. what you need do is you set up some guidelines that you expect everybody both the reviewers and businesses to play by and you very stringently monitor and police those. and the answer to the question of okay so we get one, we get a review that maybe doesn't hit the defamatory threshold, so the defamation suit that professor goldman was referencing isn't in play but it's a really negative view, could it hurt the business. there's a lot in there. just aggressive. much like with political speech i would represent that the answer to that aggressive speech that you don't like isn't to stifle the speech tore take it away it's to answer with it good speech that you do like and allow those looking at to it evaluate it just like you would in a debate or making decisions
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on things you look at both sides and you decide who you trust. if that review that you read is totally contradictory from the six before it and six after it that's someone you're not going path lot of weight in and that's what we see from users on our site all the time. the average person is not looking at one review which is business owners are shore. this is one horrible review it will kill our business. every study we does the average trip adviser user will look at 12 reviews. so that one will be totally put aside. >> i would like to flip this around a little bit. i've seen reports of companies that exist that businesses can hire essentially to write good reviews about them and that this is a problem on sites like amazon and tripadviser and yelp where consumers depend on the reviews to make informed decisions. is there a role for either trade
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commission corning to play in addressing this problem that these businesses exist essentially to write up false good reviews? >> the commission actually has taken action against companies that have, i'm trying to think of the specific examples off the top of my read reverb learn and master are two cases we've had. there's been another one more recent lie involving i think called amerifreight. i don't want to misassign blame. but there's cases in which companies have manipulated reviews in some ways by paying for positive reviews that are not -- there's no disclosure that people were compensated for the reviews. i think the commission's general stance is laid out in guidelines that have been issued to help businesses about endorsements and talking to specifically about, you know, any sort of -- i mean any sort of compensated
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endorsement if somebody has really use ttd product and talking about their real experience and just not disclosing they were being paid to leave a review. that's one set of facts. where another one the person hasn't used the product at all they are making up stuff and it's deceptive. it's not something even disclosing will help. i'm totally making this up. it wouldn't be -- it would be something that could well fall under the commission's existing authority under section 5 of the ftc act. there's probably, you know going to be evolution in that marketplace as well and we'll have to see how well we can keep up with that. sometimes it's difficult to detect when that's happening just by the very nature of the problem. that's a challenge but i think from a legal standpoint, you know, if consumers don't understand that review is being compensated or the review is
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being made up you're well into section 5 deception territory, i think. >> the new york attorney general also about a year and a half ago undertook a big effort in identifying some of these companies, and going after them and settled with i forget the exact number close to ten i think and based on laws already on the books on deceptive trade practices and fraud and things of this sort. so to answer -- you're right. it's sort of like a whole separate section. i don't know if you guys have until 2:00 free. the one thing i would say from a purely commercial point of view is obviously we would love any and all support we can get from law enforcement in going after these like very legitimate bad actors harming consumers. but from what we're doing we have our terms of service. those type of reviews are definitely a breach of service. you can claim fraud and consumer
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deception claims against them but, you know, a platform like ours and really any platform that is the -- that doesn't have a stake in the game not write a review of the product that i'm selling but rather let's look at our reviews and compare and contrast other company things we have no incentive at all if a review comes in if it's a good review or bad review. don't care. all we want is an accurate review. because the first time you decide to rely on trip adviser and book your trip to cabo and get down there with your family and you have a totally different experience than what you saw on trip adviser you'll never come back to trip adviser. the numbers indicate the opposite for us. people are coming more and more often. we tuned veracity of the reviews is very important. we have a team of people, 300 people around the world,
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specialists within that team that's doing sting operations, buying these reviews, going after these companies, signing up as employees of these companies, all these sorts of things to really go after them and take them down from any angle we can from text consumers. so there s-you know marketplace reality is going to encourage platforms to do it but absolutely there is we'll take all the help we can get in that fight. >> any last questions. thank you all for coming. thanks to our panelists for coming out. the internet clearly has brought a lot of these issues to light. the cases that came up are some of the things that really raise awareness up on the hill for what does have to be done in congress to protect consumers. so i encourage you to follow carl's recommendation to let the commission know if you've experienced any of these to push these forward and keep on the look out for additional briefings that the internet caucus advisory committee has and i also echo tim's invitation
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to attend january 25th on these issues. so thank you, everyone. [ applause ] . presidential candidates are spreading out throughout iowa and new hampshire today. ]ráp'ders will be holding a town hall meeting in woolfeboro new hampshire which you can watch live. c-span will have live coverage as hillary clinton talk with iowa supporters at the university of iowa in iowa city. set to begin at 8:30 p.m. eastern. then saturday c-span will be live with the first of the nation presidential town hall hosted by the new hampshire
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republican party in nashua. many will be there along with notable republican leaders. live coverage begins on saturday morning at 10:00 eastern. again that's on c-span. as i've been watching the campaign this year it's far0i(px more interesting to look at the republicans than the democratic side. and that may have something to do with why there's more interest in these candidates and their books. >> sunday night on q and a, nonfiction book critic for "the washington post" discusses books written by the 2016 presidential candidate. >> so many of them everyone does have interesting stories in their lives and politicians you know who are so single minded in this pursuit of power and ideology could have particularly
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interesting ones but when they put out these memoirs they are sanitized. they are vetted. you know, they are there for sort of minimum controversy. >> sunday night at 8:00 eastern on c-span's q and a. are . arizona governor doug ducey has delivered his 2016 state of the state address to lawmakers in phoenix. he focused on jobs education and improving arizona's foster care system. this 45 minute event is a courtesy of arizona capital television. [ applause ]
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[ applause ]
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>> [ applause ] [ applause ] thank you members. we have governor doug ducey of the great state of arizona. welcome. [ applause ]
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>> thank you. speaker gowan, president biggs, house leaders, senate leaders, chief justice bales, members of the legislator and judiciary, my fellow arizonans, thank you and good afternoon. [ applause ] i also want to give a special welcome to the newest member of the state's highest court, justice clint bolick. [ applause ] tomorrow marks one year since you first welcomed me into this chamber seven days on the job.
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on that day our state was broke. a billion dollars in the red. old laws stood in the way of new jobs. and a lawsuit over school funding froze progress for our kids while threatening a constitutional crisis. what a difference a year makes. today because of our decisions there's money in the bank. we can pay our bills and our credit rating upgrades will save taxpayers millions. we've added more than 56,000 new jobs and 100,000 new citizens and "forbes" says we are the best state in the country for future job growth.
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we've unleashed innovation. our free enterprise system is flowing and so is the beer at four peaks. and we enter 2016 in an effort united to deliver our students and teachers billions in new dollars. i'm proud to stand here today and say the state of our state isn't just strong, it is on the rise. opportunity for all. i'm convinced our accomplishments in this first
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year came from a commitment to that vision and the ability to work together to tackle problems long postponed. lawmakers here stepped up and speaker gowan and president biggs delivered on the promise of legislative leadership. when it came to balancing our budget, we were told it just couldn't be done. not without raising taxes. but we weren't going to make the people of arizona pay for the failings of politicians. so we got the job done, instead of raising taxes, we lowered them. a year later the big spenders
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who told us we couldn't balance the budget are beating the drum, celebrating our hard work with plans to spend and party like it's 1999. some people never learn no matter how much their head hurts in the morning. someone needs to be the voice of sobriety. so, when they bring out the punch bowl i will be here to say once again not on our watch. on friday i will release my budget and the big spenders and special interests aren't going to like it. it prioritizes vital commitments like education child safety and public safety. it eliminates waste. it's balanced, and most
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importantly it does not raise taxes. now i understand it's unusual for elected leaders to keep their promises, but let me assure you i intend to keep mine. together we will lower taxes, this year next year and the year after. and we will invest in education this year, next year, and the year after. it doesn't have to be an either/or. we can be responsible with our budget, invest in the future, and allow the people to keep more of the dollars they earn. after all it's the people's
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money, not the government's. those same taxpayers expect results from us at this capitol, but all too often success in this building is measured by how many billions we pass and new laws we add to the books. the result is more than 10,000 pages of statutes containing some 20,000 laws. we all have priorities this year. but as you debate new laws i call on you to ask, is this the proper role of government? are we expanding freedom or limiting it. last year 1,163 bills were introduced. 344 crossed my desk and 324
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became law. i enjoyed reviewing all of them. yes, even the ones i didn't sign. but sometimes as the saying goes, if you want to learn something new, you need to read something old. as barry goldwater wrote in "conscience of a conservative," my aim is not to pass laws, it's to repeal them. so in that spirit in the governor's office we've identified hundreds of buried regulations that state agencies have imposed on arizonans through the back door hurting businesses large and small, stifling job creation and progress. unfortunately, the process to get rid of these unnecessary regulations isn't nearly as easy as the process to create them.
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send me legislation to allow agencies to wipe them out easier and faster and i'll sign it. don't stop there. arizona requires far, far too many licenses for far too many jobs, resulting in a maze of bureaucracy for small business people looking to earn an honest living. believe it or not, the state of arizona actually licenses talent agents. i say, let's leave the job of finding new talent to adam levine and gwen stefani, not state government. the elites and special interests will tell you that these licenses are necessary, but
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often they've been designed to kill competition or keep out the little guy. so, let's eliminate them. where we must have government let's make it work. we are transforming how we operate. in a pilot project across 23 state agencies, arizona was able to deliver services to our citizens 65% faster on average without sacrificing quality. before we started things were moving slowly. government was sitting on applications. in the case of qualified bus drivers, four days of work was taking 46 days. so now, four days of work takes four days.
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expect more of these improvements as we create a results-driven government that works at the speed of business. last year state government finally entered the 21st century. just 15 years late. whether it was allowing vendors at tech shop in chandler greater freedom to crowd fund or ending sting operations against ride sharing by overzealous state regulators we've embraced innovation, and we're not done yet. more than 40 million passengers enter our state through sky harbor international airport every year but you can't order an uber or lift because
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unelected bureaucrats at city hall are protecting special interests. sky harbor may be a city airport, but it's an arizona vital resource used by citizens all over our state, and our economy is dependent on its success. i call on phenix city government to lift these unnecessary regulations immediately. i also encourage all our cities and towns to put the brakes on ill-advised plans to create a patchwork of different wage and employment laws. if these political subdivisions don't stop, they'll drive our economy off a cliff. 91 cities and


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